When I write about Indian issues for a non-Indian audience, the effort always requires a history lesson. When I’m writing for a mixed audience, the challenge is to bring non-Indians along without boring Indians steeped in their own history. Federal Indian Law presents a similar challenge and it’s contained in the shorthand “Indian Law 101” and the question of how much of it must be served up before you talk about the real subject at hand.
The U.S. is a young country compared to the home countries of the colonists and also compared to the histories of peoples Canadians know by the splendid descriptor we do not have south of that border, First Nations.
The colonists, too, have historical pathways to get where they are today. Unlike Indians, they take pride in being ahistorical and always seem to think they’ve just invented some wheel that, to a historian, shows a lot of wear and tear. The Tea Party, for example, got its seed money from the same folks who seeded the John Birch Society, and so it’s no great surprise that the politics of the two organizations are similar.
As I write, an armed mob of “patriots” has occupied a bird sanctuary that occupies Northern Paiute land in Oregon. The Paiutes have no objection to a bird sanctuary, but the occupiers do.
If you asked the “patriots” to identify their historical forebears, they offer the Boston Tea Party, vandalism in faux Indian costumes engineered by the Sons of Liberty as they agitated their way toward the American Revolution. That’s not exactly so.
For one thing, the Sons of Liberty started out with an idea of “liberty” that came from the rights of Englishmen. They understood themselves to be Englishmen until George III trampled enough of their rights to make it clear that colonists would never have full citizenship rights.
For another, the Sons of Liberty did not start out threatening violence to fellow colonists or even to the redcoats. Even when revolution was in the air, it’s hard to picture the Sons of Liberty occupying a bird sanctuary with an implicit threat to shoot park rangers if the park rangers interfered.
No, the "patriots" have a different historical lineage in the opposition to Theodore Roosevelt’s plan to create a national park system. Indian history is joined at the hip with the national park system, since the first laws to set aside land for public use were enacted to protect the pre-history of the Americas from destruction by pothunters and grave robbers.
The Antiquities Act of 1906 was aimed squarely at the looting of American Indian archeological sites for profit by people who valued money above science. They also valued money far above the sensibilities of the people watching their ancestral homes ripped apart for souvenirs of extinct (but noble) savages.
U.S. Presidents acquired the authority to protect Indian sites from pothunters by declaring national monuments. The very first was Bear Lodge, a mountain in Wyoming known to the colonists as Devils Tower. Most of the early national monuments were chock full of Indian petroglyphs, sacred sites, and burials.
Federal protection of the cultural heritage of North America was not without controversy, and the controversy remained when the object of protection was natural heritage. When Theodore Roosevelt established the Malheur National Wildlife Refuge, the primary problem being addressed was the impending extinction of bird species dying because the fashion in women’s hats required their feathers, principally the roseate spoonbill and the snowy egret.
Farmers objected, and in a referendum framed as a competition between the interests of humans and the interests of birds, the humans won. The federal government sued to quiet title to the land it had stolen fair and square from the Northern Paiutes after the Bannock War.
Perhaps one of the most famous Two Spirits of the past was We'wha (1849-1896), of the Zuni nation. We'wha was biologically a male and engendered with a female spirit. By all accounts, she was a very intelligent person who became the Zuni Ambassador in Washington, D.C. and was celebrated by the Washington elite as "The Zuni man-woman." This photo depicts We’wha in traditional Zuni female clothes.
The SCOTUS settled the ownership of the Malheur National Wildlife Refuge in United States v. Oregon (1935). The “patriots” currently occupying that land keep waving copies of the U.S. Constitution. Apparently their copies are missing Article III, which vests “the judicial Power of the United States” in the SCOTUS.
Malheur was not the only conservation attempt that was controversial. Historian H. Duane Hampton published an article pointing out that at the time (1981) two thirds of national parks had faced significant political opposition. Hampton categorized the disputes as follows:
1. The economic argument that the market will always reveal the highest and best use of land. Park nerds complain that the golden arches of a well-known hamburger joint have moved too close to the Grand Canyon. Those persuaded by the economic argument claim that the burgers are too far away and imagine what it would be like to have a bottled water concession halfway down the Bright Angel Trail.
2. The elitist argument that says nobody uses parks except the wealthy while working people pay for the upkeep and the lost economic opportunities. I visit the parks every chance I get and my mileage differs, but even if the elitist argument were correct it would seem prudent to save something for all of our grandchildren.
3. The bureaucratic argument that claims locals are best fixed to manage local land as contrasted to the distant and out of touch federal government.
4. Miscellaneous arguments peculiar to particular political fights. In this category, we find the “patriots” waving reprints of the Constitution and claiming that the very existence of National Parks, Monuments, Forests, Rivers, Seashores, and Wildlife Refuges offend that document.
From their public statements in Nevada and Oregon, I take it that if natural areas and historical artifacts should be preserved, the Constitution requires the states to do it to the exclusion of the feds.
These scattered political movements to stop the expansion of public lands in the name of protecting the public are the historical forebears of the “patriots” threatening to shoot any park rangers who come to eject them.
In the seventies, the scattered opponents of public lands coalesced into the Sagebrush Rebellion, making political hay from the vast acreages locked into federal management and therefore unavailable for development.
A decade later, the “Wise Use Agenda” oozed forth from a conference in Reno, Nevada organized by Ron Arnold, author of a laudatory biography of the Secretary of the Interior appointed by President Reagan to the end of destroying federal land management, James Gaius Watt.
There are 25 points in the Wise Use agenda, covering issues dear to the hearts of those who wish to harvest timber, drill for oil and gas, and mine for minerals without regard to sustainability or environmental damage. Essentially, they seek to elevate the economic argument against conservation to the highest goal of U.S. public policy.
The “patriots” currently holding the Malheur National Wildlife Refuge over the objections of the local sheriff and the Burns Paiute Tribal Council as well as most park nerds are functioning as the military arm of the Wise Use Movement.
What is “Wise Use?”
Whatever the market says it is. The patrimony of our grandchildren and their grandchildren is claimed to be on offer to the highest bidder in early 21st century dollars.
Who is represented in an appeal to “the public interest?”
The public is whoever shows up with the most guns and most effectively communicates willingness to kill political opponents. Or to shoot park rangers.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.